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Year: 2019

Elizabeth N. Jochum has joined Smith Pachter McWhorter as a Member of its Government Contracts Group and Haris Hadzimuratovic and Jacob Bolinger Have Joined the Firm as Associate Attorneys.

NEW ATTORNEY ANNOUNCMENT: Smith Pachter McWhorter PLC is pleased to announce that experienced government contracts attorney Elizabeth N. Jochum has joined the firm as a partner.  Ms. Jochum augments the firm’s existing capabilities, adding extensive experience in bid protests and other government contracts litigation, as well as government contracts-related investigations and white collar defense. Smith Pachter McWhorter PLC is also pleased to announce the addition of two associate attorneys.
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Chambers USA: America's Leading Lawyers for Business recognizes 7 Smith Pachter McWhorter PLC lawyers and lists practice area groups as leaders in their field in its 2019 edition.

Chambers USA: America's Leading Lawyers for Business recognizes 7 Smith Pachter McWhorter PLC lawyers and lists practice area groups as leaders in their field in its 2019 edition.

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Legal Developments Alert: U.S. Supreme Court Decision Enhances Protections for Confidential and Proprietary Information under FOIA

In 1974, the D.C. Circuit adopted a standard requiring a party to show that "substantial competitive harm" would result if records a party submitted to the government were released to the public under the Freedom of Information Act (FOIA)."  In an important case decided on June 24, 2019, the U.S. Supreme Court, by a 6-3 vote, discarded the substantial competitive harm test, holding that "where commercial or financial information is both customarily and actually treated as private by its owner and provided to the government under an assurance of privacy, the information is 'confidential' within Exemption 4's meaning."  

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Iris Bennett Speaking at NACDL 2019 West Coast White Collar Conference

Partner Iris Bennett is scheduled to speak at the National Association of Criminal Defense Lawyers 2019 West Coast White Collar Conference on June 20, 2019 in Santa Monica, CA. 
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The National Contract Management Association (NCMA) DC Chapter recently named Smith Pachter McWhorter attorney Dan Ramish first place winner of its 2019 Outstanding Academic Achievement Award (OAAA).

The National Contract Management Association (NCMA) DC Chapter recently named Smith Pachter McWhorter attorney Dan Ramish first place winner of its 2019 Outstanding Academic Achievement Award (OAAA). 
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Legal Developments Alert: U.S. Companies Caught in Limbo as Huawei and Sixty-Eight of Its Subsidiaries Were Added to the Entity List, Causing China to Retaliate

On May 16, 2019, the U.S. Bureau of Industry and Security (BIS) issued a final rule amending the Export Administration Regulations (EAR) to add Huawei Technologies Co., Ltd. (Huawei) and its sixty-eight non-U.S. affiliates to the Entity List.  Five days later, on May 20, 2019, BIS issued another final rule granting a 90-day Temporary General License (May 20, 2019 through August 19, 2019) for four categories of EAR-regulated transactions involving existing and fully operational networks/systems, handsets made available to the public on or before May 16, 2019, and 5G standardization.  China countered by furious rhetoric and threats of counter measures including an “Unreliable Entity List” targeting persons and companies stopping or disrupting supply to Chinese companies like Huawei “for non-commercial reasons.”  This article discusses the risks U.S. exporters may face in the context of the regulatory clash between the two economic giants and some of the coping strategies in light of regulatory uncertainties affecting the feasibility of ongoing business relationships with Huawei.

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Legal Developments Alert: White House Announces Tariffs on All Imports from Mexico

On May 30, 2019, President Trump announced that “the United States will impose a 5% Tariff on all goods…from Mexico...” Certain FAR clauses permit price adjustments for new duties imposed after award (e.g., FAR 52.229-3) or if specified contingencies occur (see FAR 16.203-1(a)).  

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LEGAL DEVELOPMENTS ALERT: DCAA Issues Revised Audit Guidance on Expressly Unallowable Costs

On May 14, 2019, the Defense Contract Audit Agency (DCAA) issued Memorandum for Regional Directors (MRD) No. 19-PAC-002(R), revising DCAA’s “guidance” on identifying expressly unallowable costs.  The revised guidance attempts to correct MRD Nos. 14-PAC-021(R) and 14-PAC-022(R) – MRDs that were inherently flawed as highlighted by recent Armed Services Board of Contract Appeals (ASBCA) decisions.  The MRD includes an updated listing of Federal Acquisition Regulation (FAR) 31 and Defense Federal Acquisition Regulation Supplement (DFARS) 231 cost principles that DCAA continues to assert, incorrectly in many instances, meet the definition of expressly unallowable costs that are subject to penalties.  Contractors should review DCAA’s updated list, as the release of the revised MRD may indicate that DCAA intends to refocus its audit efforts in the penalties arena.

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LEGAL DEVELOPMENTS ALERT: Supreme Court Addresses False Claims Act Statute of Limitations

The U.S. Supreme Court issued a unanimous decision in Cochise Consultancy, Inc., et al. v. United States ex rel. Hunt, addressing conflicting decisions on the False Claims Act statute of limitations and expanding the time allowed for private party relators to file whistleblower lawsuits.  The decision increases the risk that government contractors may be subject to qui tam claims brought as many as ten years after the alleged violation, including by relators who may have chosen not to act on their own knowledge, provided that the relator can prove that government agent had or should have had knowledge of the alleged false claim.

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Vincent Li has joined Smith Pachter McWhorter’s White Collar Practice Group

NEW ATTORNEY ANNOUNCMENT: Vincent Li has joined Smith Pachter McWhorter’s White Collar Practice Group

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LEGAL DEVELOPMENTS ALERT: DOJ Issues Guidance on False Claims Act Matters

On May 7, 2019, the Civil Division of the Department of Justice (“DOJ”) released guidance to its litigators related to the False Claims Act (“FCA”).  This guidance establishes DOJ policy regarding credit to defendants cooperating during an FCA investigation and is included in the Justice Manual at Section 4-4.112.  The new policy sets forth the factors long relied on by DOJ, describing voluntary disclosure, cooperation with a government investigation, and remedial action as the primary means through which an FCA defendant can obtain credit.  For government contractors that find themselves potentially subject to FCA liability – whether identified through an internal investigation or receipt of a subpoena – the guidance provides a useful framework to think through potential responses.
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Event: NCMA DC Special Programs: Price/Cost Realism in Federal Procurement

SPM EVENT: On Tuesday, May 28, 2019 SPM Member Armani Vadiee and Todd M. Garland will present at the National Contract Management Association, Washington DC chapter event regarding price/cost realism evaluations and preparing successful proposals.

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LEGAL DEVELOPMENTS ALERT: John S. Pachter and Todd M. Garland Submit Amici Curiae Brief to Armed Services Board of Contract Appeals on Behalf of Professional Services Council and National Defense Industrial Association

LEGAL DEVELOPMENTS ALERT: John S. Pachter and Todd M. Garland authored an amici curiae brief on behalf of the Professional Services Council and National Defense Industrial Association, urging the Armed Services Board of Contract Appeals to reconsider its decision in Kellogg Brown & Root Services, Inc., ASBCA No. 57530, 19-1 BCA ¶ 37,205.
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LEGAL DEVELOPMENTS ALERT: OFCCP Announces 2019 Contractor Compliance Audits

LEGAL DEVELOPMENTS ALERT: OFCCP Announces 2019 Contractor Compliance Audits

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LEGAL DEVELOPMENTS ALERT: U.S. Supreme Court to Hear Case Involving FOIA Exemption for Commercial and Proprietary Information

LEGAL DEVELOPMENTS ALERT: U.S. Supreme Court to Hear Case Involving FOIA Exemption for Commercial and Proprietary Information
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LEGAL DEVELOPMENTS ALERT: U.S. Attorney Jessie Liu Appointed Chairwoman of the Attorney General's Advisory Committee

LEGAL DEVELOPMENTS ALERT: U.S. Attorney Jessie Liu Appointed Chairwoman of the Attorney General's Advisory Committee
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Smith Pachter McWhorter Attorney Receives ABA Public Contract Law Journal Writing Award

Smith Pachter McWhorter's Dan Ramish recently tied for first place in the American Bar Association's 2018 Public Contract Law Journal (PCLJ) Writing Competition, Division II (LLM and Young Lawyers).
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LEGAL DEVELOPMENTS ALERT: Assistant Attorney General Brian A. Benczkowski Promotes Transparency with the Business Community

LEGAL DEVELOPMENTS ALERT: Assistant Attorney General Brian A. Benczkowski Promotes Transparency with the Business Community

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Government Contracting Small Business Trends: Business Issues, Protests and Appeals

On May 7, 2019 Smith Pachter McWhorter attorney Jonathan Shaffer will present a panel/webinar on federal small business contracting issues at the District of Columbia Bar.
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LEGAL DEVELOPMENTS ALERT: DOD Issues Several Memos on Cybersecurity Compliance

LEGAL DEVELOPMENTS ALERT: DOD Issues Several Memos on Cybersecurity Compliance
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LEGAL DEVELOPMENTS ALERT: GAO Issues Report on DCAA and DCMA Business System Audits

LEGAL DEVELOPMENTS ALERT: GAO Issues Report on DCAA and DCMA Business System Audits
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Recent Decisions Bode Well For False Claims Act Defendants

In two articles, John S. Pachter and Todd M. Garland discuss recent False Claims Act trends.

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LEGAL DEVELOPMENTS ALERT: Presidential Executive Order on Strengthening Buy American Preferences for Infrastructure Projects

LEGAL DEVELOPMENTS ALERT: Presidential Executive Order on Strengthening Buy American Preferences for Infrastructure Projects

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Smith Pachter McWhorter's False Claims Act Practice Guide: 2019

Smith Pachter McWhorter PLC is pleased to present the 2019 edition of its False Claims Act Practice Guide

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Michael Lowman has joined Smith Pachter McWhorter’s White Collar Practice Group

NEW ATTORNEY ANNOUNCMENT: Michael Lowman has joined Smith Pachter McWhorter’s White Collar Practice Group
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